The new rule defines four categories of federal jurisdictional waters: (i) traditional navigable waters and the territorial seas; (ii) perennial and intermittent tributaries to those waters; (iii) lakes, ponds and impoundments of those jurisdictional waters; and (iv) adjacent wetlands. The last category includes wetlands that abut (meaning they “touch” at least one point or side of jurisdictional waters) or that are separated by a natural or manmade barrier which allows for direct hydrologic surface connection between the wetland and the jurisdictional water.
The final rule also provides twelve categories of waters that are excluded from federal jurisdiction. Management of these resources are left to the states. Those categories of nonjurisdictional waters include groundwater; ephemeral features that only flow in direct response to precipitation; many farm and roadside ditches; prior converted croplands so long as the land has been used at least once in the preceding five years for or in support of agricultural purposes; artificial lakes and ponds, including reservoirs and farm, irrigation and stock watering ponds; artificially irrigated lands, including fields flooded for agricultural production; and upland stormwater control features, among others.